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2024

Enforcing consumer rights to combat greenwashing

Tackling greenwashing is an issue where human rights, consumer rights and climate goals align. Companies use greenwashing to convince people to buy products that are not always as environmentally friendly as they claim to be. They mislead consumers and harm the environment. This report shows how a human rights approach can combat greenwashing. It is based on consultations with experts in 10 Member States. The report identifies gaps in existing laws and enforcement. It includes case studies of consumers seeking remedies for misleading environmental claims.
The EU and Member States should enforce rules that make it harder for companies to make misleading environmental claims. They should strengthen rules that make it easier for consumers to prove that companies are greenwashing. Consumer and environmental organisations already hold governments and business to account. Governments should make it easier to use collective action for the protection of consumer rights and the environment.
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2. Legal requirements for enforcing collective consumer and environmental rights


Definitions

Collective action and representative action are two different legal mechanisms that allow consumers to protect their collective interests. The relevant definitions include the following.

Collective action / class action refers to action taken together by a group of people whose goal is to enhance their condition and achieve a common objective.

Collective interests can be defined as interests that are common to all members of a particular group.

Diffuse interests refer to interests that are not individualised and are shared by a large number of people, such as the environment or public health.

Representative action means an action for the protection of the collective interests of consumers that is brought by a qualified entity as a claimant party on behalf of consumers to seek an injunctive measure, a redress measure or both. The RAD was adopted, in 2020, to ensure protection of collective consumer interest in the EU, by making representative actions effective and regulating the use of collective actions. Its measures should be applicable in Member States as of June 2023.

Damages is the compensation provided to a person or entity who/that has suffered harm or loss due to the omission or action of another. Damages try to quantify in financial terms the extent of harm suffered by a plaintiff due to the actions of the defendant.

Damage refers to actual and/or physical damage to tangible property.

Harm means an adverse impact affecting the life, health, physical integrity or property of a natural or legal person, or causing significant immaterial disadvantage.

Protecting consumers and protecting the environment can align in several ways, as both aim to promote sustainable practices and responsible consumption by addressing green marketing, sustainable consumer protection policies, sustainable consumption, consumer education and greenwashing. Tackling corporate failures and promoting sustainability initiatives, in support of consumer and environmental protection, can be pursued through collective or representative actions, given the collective nature of consumer interests and owing to the collective interest of most environmental actions.

In the area of private enforcement, the RAD introduced, in all Member States, the possibility of enforcing the UCPD through representative actions. Such actions could be brought by qualified entities, seeking injunctive relief or damages on behalf of the affected consumers.

The legal systems of EU Member States regulate legal (material and procedural) conditions for collective actions mostly in civil law. This chapter analyses and compares how the legal frameworks of 10 EU Member States regulate the requirements for collective and representative consumer actions when linked to the protection of environmental rights. In this, it identifies gaps, barriers and promising practices.


2.1. Collective consumer actions relating to the environment


Definitions

An opt-out mechanism automatically includes individuals in a lawsuit unless they choose to remove themselves from the class. They must actively opt out by notifying the court that they do not want to participate.

An opt-in mechanism requires individuals to take proactive steps to join the class or collective action.

The RAD allows EU Member States to choose whether collective actions operate on an opt-in basis, an opt-out basis or a combination of both.

Rules on collective action in national legal systems vary. They can be regulated either in the general administrative or civil law, which is the case for Austria, Belgium, Bulgaria, Denmark, Italy and the Netherlands, or in consumer-specific legislation focusing on the environment which is the case for France. In some Member States, namely Germany, Poland and Portugal, the possibility of collective action appears ‘fragmentated’ in several legislative acts.


2.1.1. Enforcement under general consumer law


The ‘Dieselgate’ cases across Europe

The ‘Dieselgate’ scandal, also known as ‘Emissionsgate’, is a significant automotive industry scandal that primarily involved the Volkswagen (VW) Group and its subsidiaries Audi, Škoda, Seat and other brands. The VW Group was accused of using deceptive software during emissions testing and providing false information that buyers relied on when making their car purchases. While the scandal originated in the United States, it had widespread implications for the entire European automotive industry, as it raised concerns about both the emission levels of diesel vehicles and the regulatory oversight of emissions testing. In many European countries, consumer and environmental CSOs took legal actions based primarily on provisions for misleading commercial practice, resulting in fines, recalls and individual compensation. Consumer protection laws played a crucial role in holding the carmakers accountable for misleading advertising, product liability, lack of transparency and lack of disclosure, and in the enforcement of consumer rights through measures such as class action lawsuits and strengthened regulatory oversight, as below.

In Belgium, the consumer organisation Test Achats filed a collective action against VW in 2016. The Court of First Instance of Brussels applied an opt-out approach, requiring consumers to demonstrate their intention not to receive compensation by July 2018. Owing to the lack of settlement between the parties, the court proceeded with the litigation, and in July 2023 the court ruled that VW (but not importers or other brands of the VW Group) must compensate affected buyers located in Belgium, who should receive either 5 % of the purchase price or 5 % of the difference between the purchase price and resale price if they come forward within 4 months of the court’s decision.

The case shows that collective actions face lengthy proceedings and financial burdens, which a representative consumer organisation willing to engage in such cases must be able to bear.

Also in 2016, the Italian NGO Altroconsumo filed a class action against VW. In 2017, the first instance court held the group responsible for unfair commercial practices and ordered to pay around 200 million euros of compensation to 63 037 consumers. VW appealed. In December 2023, the Court of Appeal of Venice confirmed that VW manipulated its software and ordered it to pay EUR 300 to all consumers involved as compensation for moral damages. Altroconsumo appealed to the Supreme Court to obtain pecuniary damages for affected consumers. Federico Cavallo, Head of External Relations at Altroconsumo, stated as follows: ‘This is a historic result which adds a very important piece to the history of class actions in our country: this tool is not yet fully known and used, certainly perfectible and for this reason evolving in both national and European legislation. A tool, however, that proves to be one of the most effective and important weapons to protect the rights of individual consumers who, by coming together, can face the major players in the global market.’

In the Netherlands, the relevant collective action was brought before the District Court of Amsterdam in July 2021 by the Volkswagen Car Claim Foundation. The VW Group admitted to the deceit but claimed that environmental friendliness was not a significant factor for car buyers. However, the court held that buyers would choose a more environmentally friendly car if given the option. Moreover, VW’s actions contradicted claims about the importance of the environment in its advertisements. As a result, the court ordered a reduction in the price of the cars and allowed the Volkswagen Car Claim Foundation to negotiate damages with the defendant, as the law did not allow the court to award damages at that time.

Prior to this, in October 2017, the Netherlands Authority for Consumers and Markets imposed a fine of EUR 450 000 on the VW Group for deceiving consumers regarding the sustainability of its vehicles.

Lawsuits have also been filed in France, Germany and other Member States. In France, the consumer association CLCV filed lawsuits in 2015. The CLCV also provides an informative toolkit on their website for consumers who wish to file an individual civil lawsuit. In Germany, lawsuits filed by the Federation of German Consumer Organisations were settled in 2020. Lawsuits have been filed in several other Member States. These lawsuits were reported by the European Consumer Organisation (BEUC) in the Dieselgate 7th reportpublished in 2022.

Whether under administrative law, civil law or consumer law, class actions and/or collective actions are available in Austria, Belgium, Bulgaria, Denmark, Germany, Italy and the Netherlands.

Austrian law does not explicitly regulate consumer claims related to the environment. Two types of action exist:

  1. class actions (Verbandsklagen) for injunctive relief against unlawful clauses or the impairment of general consumer interests or unfair business practices, which can only be brought by certain plaintiffs exhaustively listed in the law;
  2. collective actions (Sammelklage österreichischer Prägung), which cede claims to a plaintiff, who pursues a joint claim for all claimants and their damages in the form of an accumulation of claims (Klagshäufung).

Class actions (e.g. for injunctive relief against greenwashing business practices) and collective actions (e.g. bundled claims of consumers harmed by such practices) on environmental issues are possible under the current legal framework, using the broader interpretation of the relevant provisions of the Consumer Protection Law.

The Belgian Code of Economic Law (Book XVII, Title 2 introduced in 2014) provides for consumers who are victims of the same conduct by a company to file a collective action for damages at the Commercial Court of Brussels. Such action constitutes a civil law claim for repair of damage suffered by a group of consumers due to a similar cause, for instance a similar violation of contractual or statutory obligations by an undertaking. The Code of Economic Law was amended on 30 March 2022 to introduce the concept of ‘damage to the collective interests of consumers’. This is defined as the actual or potential harm to the interests of a number of consumers affected by infringements.

Grounds for collective actions are intentionally limited by the legislator, and matters such as the environment or public health are excluded. Collective damage claims would be possible on the basis of Book VI (market practices and consumer protection) and Book IX (safety of products and services) of the Code of Economic Law, regarding advertising and information on the product or service, but not solely or directly on the grounds of a company’s failure to comply with environmental legislation.

Since the introduction of the collective action regime in Belgium, as of December 2022, nine class actions have been initiated, eight of which were brought by Test Achats, the main Belgian consumer protection organisation. They were focused on particular consumer protection rights, such as the rights of air passengers and the rights of car buyers in the Dieselgate scandal.

The Bulgarian Consumer Protection Act provides for the possibility of bringing both collective and representative claims beyond the scope of consumer matters. Although matters related to the environment (including greenwashing) are not explicitly listed as potential grounds for seeking collective redress, the act’s provisions prohibiting the implementation of unfair commercial practices could be used for that purpose.

Claims that do not fall within the scope of collective consumer protection can still be filed under the general collective action rules of the Civil Procedure Code, which allows for two categories of collective actions: (1) establishing harmful acts or omissions, their unlawfulness and guilt; and (2) discontinuing violations, remedying consequences and compensating damages. In practice, the option to file complaints related to the environment is not commonly used under the Consumer Protection Act, but there have been rare cases of collective complaints on environmental issues filed under the Civil Procedure Code (see Box below).

Examples of collective actions on environmental issues in Bulgaria are mainly related to air pollution

In 2017, the Supreme Cassation Court of Bulgaria ordered the Municipality of Plovdiv and the Regional Environmental Protection Agency to improve air quality in Plovdiv. The defendants were accused of failing to protect the air quality, which resulted in excessive levels of fine particulate matter. The court ordered them to achieve legally permissible levels within 12 months (*).

Another case was filed in 2017 by the Clean Air Group (a group of citizens and NGOs) against Sofia Municipality for contributing to air pollution in Sofia. The group claimed that the municipality allowed excessive fine particulate matter emissions, putting people’s health at risk. The court ordered the municipality to implement measures to improve air quality, such as using alternative heating methods, assessing the measures taken in the transport sector and constructing interconnected bicycle paths (**).

Sources:

(*) Bulgaria, Court of Appeal of Velikovo Tarnovo, Case No 239/16 of 22 February 2017.

(**) Bulgaria, Sofia City Court, Decision No 266455 on Civil Case No 6614/2017, ECLI:BG:DC:110:2021:20170106614.001, 8 November 2021.

In Denmark, Chapter 23 of the Danish Administration of Justice Act allows for collective/representative action if several conditions are simultaneously fulfilled. These conditions are thatmultiple people hold similar claims, the claims can be processed in Denmark, the court seized has competence to examine the claims a collective action is the best way to process the claims, members of a collective action claim can be identified and notified in an appropriate way, and a representative for the collective action claim is appointed. If the conditions are met, the legal framework allows for consumer collective/representative action related to environment.

The Danish Administration of Justice Act has an opt-in system for identifying collective action members. However, if the claims are too small to be pursued individually, the court can include those who did not opt out of the collective action. There is a specific time limit for withdrawing from the action, and in certain cases registration can still be allowed after the deadline. Registering for the action is a simple process that requires only filling out a form with personal information. The deadline for registration is typically 4–8 weeks after receiving notification of the case (in case of individual notification to the individual group members) or 2–3 months in other cases.

Representative action claims related to the environment before Danish courts include cases against Danish Crown (see Box below) and the Danish dairy company Arla (see Section 1.2), both pertaining to environmental greenwashing through the marketing practices of the involved companies.

Danish Crown

A representative action was filed in 2022 against the company Danish Crown, for potential greenwashing and misleading marketing of its pork products. The company’s label claimed that its pork was ‘climate-controlled’ and more environmentally friendly than it actually is. Moreover, the company used the phrase ‘Our pigs are more climate friendly than you think.’ Greenpeace and several other environmental organisations complained that the company cannot prove this claim since the labelling is a set of voluntary targets established by the company and initiated legal action for violation of the Danish Marketing Practices Act. The case has been referred to the Western High Court because of its general public importance. The judgement is expected in February 2024.

In Germany, the Bundled Enforcement of Consumer Rights Act and the Actions for Injunctions Act provide for representative actions (Vebandsklagen) in civil law matters, particularly regarding:

  • injunctive measures against unlawful clauses or the impairment of general consumer interests or unfair business practices;
  • redress measures for the benefit of consumers registering their claims with a specific representative action;
  • declaratory judgments in favour of such consumers.

Representative actions can be brought only by registered qualified entities that fulfil certain requirements regarding their size and financing. Representative actions are not limited to claims relating to the environment but encompass every possible consumer claim irrespective of its legal foundation.

In addition, Germany’s Code of Civil Procedure allows for complementary collective action instruments such as consolidated action (Sammelklage or Einziehungsklage) and enables certain consumer organisations to represent consumers in low-value claims, where no attorney is required. However, this provision applies only to representation in court, and consumer claims are usually assigned to consumer protection organisations for collection. This approach is primarily used for test cases owing to its limited reach and resource constraints.

In Italy, the Consumer Code provides for the collective action to protect consumers exclusively. Courts decide on liability and individual damages together and victims’ compensation is defined on a lump-sum basis. In 2021, Law No 31/2021 introduced organic regulation of collective civil proceedings, in the Code of Civil Procedure, including injunctions and class actions from the Consumer Code. It has a wider scope of application than the RAD but does not regulate cross-border infringements.

In the Netherlands, the Dutch Civil Code previously allowed representative action on behalf of a group of people with similar interests and in the public interest (including environmental interest), as long as the legal representative had the authorisation of the persons concerned. Since 2020, it has been possible for a representative entity to bring a collective action on an opt-out basis and claim damages under the Resolution of Mass Damage in Collective Actions Act. Persons who live abroad can join the collective action on an opt-in basis. So far, several class actions have been initiated by civil society organisations (see Box The Netherlands: consumer obligation to verify misleading claims and Box The ‘Dieselgate’ cases across Europe and Box Dutch lawsuits against big polluters).

Dutch lawsuits against big polluters

In April 2019, the environmental group Milieudefensie filed a lawsuit against Shell in the Netherlands, accusing the company of violating Dutch law and human rights obligations (including Article 8 of the European Convention on Human Rights) by contributing to climate change. The case involves several NGOs and over 17 000 citizens seeking a court ruling to reduce CO2 emissions in line with the Paris Agreement. The case against Shell builds on the Urgenda case (which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens), arguing that private companies have a duty of care to reduce greenhouse gas emissions, based on the Paris Agreement’s goals and scientific evidence. In May 2021, the court (*) ordered Shell to reduce emissions by 45 % across both its own operations and use of the oil it produces. The court acknowledged that Shell has individual partial responsibility in the global problem for its contribution to global emissions, which it can control. The court made the decision provisionally enforceable even during the appeal process. The court allowed the case to proceed as a class action, as it aligned with the objectives of the environmental groups and NGOs involved. In July 2022, Shell appealed. The appeal is pending.

In July 2022, ClientEarth, along with Fossielvrij Netherlands and Reclame Fossielvrij, filed a lawsuit against KLM in the Netherlands, challenging the airline’s misleading marketing that promoted the sustainability of flying. It also challenged KLM’s carbon-offset marketing, which suggests that customers can reduce their flight’s impact by supporting reforestation projects or the airline’s costs of purchasing small quantities of biofuels. It is the first-ever legal claim challenging airline industry greenwashing. KLM has denied the allegations and argued that the group bringing the lawsuit did not represent most KLM customers and did not have the right to bring a lawsuit. In a significant development, in June 2023, the District Court of Amsterdam granted permission (**) for the lawsuit to proceed to a full trial (see also the Advertising Code Committee decision in Section 1.2).

Sources:

(*) District Court of The Hague, Milieudefensie et al. v Royal Dutch Shell PLC, judgment of 26 May 2021, C/09/571932/HA ZA 19-379.

(**) District Court of Amsterdam, Foundation for the promotion of the fossil free movement, judgment of 7 June 2023, C/13/719848/HA ZA 22-524.


2.1.2. Environmental claims regulated by specific legislation

In France and Germany, there is specific legislation for collective actions relating to environmental claims.

In Germany, Article 9(3) of the Aarhus Convention is implemented through the Environmental Appeals Act, which allows environmental organisations to bring representative action if they meet certain criteria set out in this law and have been recognised as an environmental organisation. However, the scope of the Environmental Appeals Act is narrower than that of the Aarhus Convention and does not cover product authorisations.

The connection between representative actions brought under this act and consumer interests can be indirect or direct, depending on the specific environmental issue. It is often indirect, such as in the case of the impact of conservation of bodies of water on drinking water, but may be more direct, for example when related to waste reduction. The Federal Nature Conservation Act and state nature conservation acts also provide for representative action instruments.

However, the public and political backlash against environmental law enforcement has led to threats to the non-profit status and tax benefits of environmental organisations.

French legislation provides for two types of collective/representative action relating to the environment beyond consumer matters:

Environmental group action was introduced in 2016 for the purpose of seeking cessation and/or compensation for bodily injuries or material damage to the environment. The harms covered here are broader than in consumer group actions, which are limited to pecuniary injury caused by products with misleading or incomplete information, and offers remedy in cases such as harm by a toxic product.

Beyond that, group action in consumer law has been progressively extended to include accredited associations of health system users, with compensation limited to bodily injuries. The 2016 Law on Modernisation of Justice of the 21st Century established a common legal framework for group actions in judicial and administrative proceedings, and established a specific procedure in respect of discrimination, in particular related to work, the environment and personal data. However, the autonomous nature of consumer action groups remains in place.

The number of cases in France is limited (by the end of 2022 there were 21 group actions and no entity had been held liable). The restrictive capacity to act, strict requirements and long delays, particularly due to formal notice requirements, have hindered environmental group action.


2.1.3. Environmental claims dispersed in different laws

Poland has a more fragmented legislative framework. Collective claims are regulated in the Collective Claims Act [35] Poland, Competition and Consumer Protection Act of 16 February 2007, consolidated text, Journal of Laws 2021.275 (Ustawa z dnia 16 lutego 2007 r. o ochronie konkurencji i konsumentów, t.j. Dz. U. z 2021 r. poz. 275).
, but can also be based on various consumer protection regulations, tort claims under civil law [36] Poland, Collective Claims Act of 17 December 2009, consolidated text, Journal of Laws 2020.446 (Ustawa z dnia 17 grudnia 2009 r. o dochodzeniu roszczeń w postępowaniu grupowym t.j. Dz. U. z 2020 r. poz. 446).
 or the separate Environment Protection Act. As of 2021, none of the collective claims in civil proceedings related to the environment. However, such claims beyond consumer matters are possible, for example, as tort claims under Article 415 or 435 of the Civil Code.

The Collective Claims Act defines collective claims as claims of one type brought by at least 10 people, based on the same factual basis. The Act contains an exhaustive list of claims which can be brought in collective action, such as claims relating to consumer protection, product liability and tort claims and claims for bodily injury excluding other personal rights claims. The court determines the admissibility of a class action before the case can be heard in class proceedings.

Consumer protection cases, including those related to environmental protection, involve consumer claims against entrepreneurs arising from various consumer protection regulations in general, the provisions focusing on unfair market practices[37] Poland, Act on Counteracting Unfair Market Practices of 23 August 2007, consolidated text, Journal of Laws 2017.2020 (Ustawa z dnia 23 sierpnia 2007 r. o przeciwdziałaniu nieuczciwym praktykom rynkowym t.j. Dz. U. z 2017 r. poz. 2070).
.

The District Court of Warsaw stated that consumer protection cases are not limited to claims based on specific consumer laws but cover all consumer cases against business entities. The court emphasised the importance of meeting conditions for class actions in consumer claims.

Portuguese legislation allows for collective actions in matters of consumer and environmental law, to protect ‘diffuse interests’. According to the Supreme Court of Justice of Portugal, diffuse interests are characterised by having both an individual and a supra-individual dimension. They are owned by each and every member of a class or group (regardless of their will) and pertain to assets that can be enjoyed simultaneously, rather than exclusively. There are currently a limited number of registered cases relating to protection of consumers and the environment.



2.2. Legal standing in collective actions relating to the environment


Definitions

Legal standing refers to the right or capacity of a party to bring a lawsuit in court. A party seeking a legal remedy is required to show that they have a sufficient legal interest in the matter at hand. Legal standing is determined by the legislation of the state where the lawsuit is filed.

Legal representation is the act of representing a party in a legal proceeding.

Legal standing is an essential requirement for ensuring effective enforcement of consumer and environmental protections, particularly with respect to collective action brought by organisations. Without legal standing, these entities are unable to advocate for and protect the rights and interests of consumers and the environment.

The RAD aims to ensure that consumers are able to protect their collective interests in the EU through representative actions: the legal actions brought by representative entities (so-called qualified entities). Qualified entities are organisations designated by Member States to bring representative actions on behalf of consumers.

The RAD distinguishes between claims brought in a Member State where a qualified entity is designated (a ‘domestic representative action’) and those brought by a qualified entity in a Member State where it is not domiciled (a ‘cross-border representative action’). The RAD sets out criteria that qualified entities must meet to bring cross-border representative actions, including having at least 12 months of actual public activity. On the other hand, Member States have more discretion in setting criteria for qualified entities in domestic representative actions. Here, the RAD merely requires that Member States ensure that the criteria ‘are consistent with the objectives’ of the directive.

Therefore, it seems unlikely that the implementation of the RAD by the Member States (required by December 2022) would bring more harmonisation of the different conditions that are currently set in Member States.

The regulation of legal standing in environmental matters in the EU Member States varies. Some Member States allow civil society organisations and individual legal representatives to provide representation without imposing specific conditions. This is the case for Austria, Belgium, Bulgaria and Denmark. Other Member States require specific conditions and/or registration for civil society organisations to have legal standing which is the case for France, Germany Italy and the Netherlands. They also maintain a list of accredited civil society organisations and/or consumer organisations. In Poland, civil society organisations, including consumer protection organisations, are not allowed to represent groups of plaintiffs in court under the Environmental Protection Act. However, they can have legal standing in public interest.

Austrian legislation allows specific consumer protection organisations or NGOs to represent consumers as plaintiffs in the collective actions.

Both Belgian and Bulgarian legislation provide legal standing in collective actions to any non-profit consumer organisation that promotes consumer protection. Article XVII.39 of the Code of Economic Law of Belgium states that a group of consumers can bring a collective action only through a group representative (other than a group member). Representatives can be consumer associations with legal personality and sitting on the Special Consumption Advisory Commission, specific associations designated by the Minister of Economy and Consumers, consumer ombuds institutions (only in the negotiation phase) or a representative institution recognised by a Member State of the EU or European Economic Area (EEA). To bring a collective action, the group must find an appropriate representative (or create a new association) and identify all claimants individually affected by a common situation. The judge determines whether an opt-in or opt-out system applies.

Under the Bulgarian Consumer Protection Act, consumers may be represented by consumer protection associations, the Commission for Consumer Protection or a qualified organisation of an EU Member State in the territory of which the consequences of the infringement of the collective interest of consumers have occurred. In litigation under the Civil Procedure Code, the persons affected by the violation can be represented by ‘an organisation for the protection of injured persons or of the injured collective interest, or for the protection against such violations’.

Danish legislation allows established and ad hoc organisations to bring a class action on behalf of consumers in administrative/judicial proceedings. Collective actions require a group representative, who can be a member of the group, an organisation, a private institution or association, or a public authority. The Danish Competition and Consumer Authority will publish a list of approved authorities and organisations for national class actions, requiring approval from the Minister of Industry, Business and Financial Affairs, according to the newly proposed draft act on access to the initiation of class actions for the protection of the collective interests of consumers.

In Portugal, in accordance with Article 14 of the Right to Procedural Participation and Popular Action Act, in popular action proceedings the plaintiff shall represent, on their own initiative, all other holders of the rights or interests at stake (that have not exercised the right of self-exclusion), without the need for a mandate or express authorisation. Thus, a citizen or a group of citizens, an association/foundation or even the public prosecutor’s office can file a claim in the name of other holders of the right without their express authorisation. There is therefore no need to identify (potential) injured parties to file a popular action.

In France, Germany and Italy, only CSOs that meet specific criteria outlined in the law can represent consumers in collective actions.

In Germany, the new Consumer Rights Enforcement Act entered into force in October 2023 which introduced redress action that complements existing options for collective actions against companies. Consumer protection organisations and consumer associations are entitled to bring collective actions for consumer protection related to environmental matters if they meet requirements for a ‘qualified institution’:

  • they have at least 30 member associations or 750 natural persons as members;
  • they have performed their statutory duties as a registered association for at least 1 year;
  • they do not receive more than 5 % of their funding from corporate sources.

French legislation regulates legal standing in consumer claims related to the environment in the Consumer Code and in the Environmental Code. The Consumer Code allows only CSOs fulfilling specific criteria set by law to represent consumers. To be eligible for national accreditation, the organisation has to have carried out, for at least 1 year, effective and public action relating to the protection of consumer interests and have a minimum number of members (at least 10 000). Therefore, individual lawyers also do not have standing to bring a consumers’ collective action, only accredited consumer organisations.

Different criteria are provided for other types of class actions. Class actions under environmental law are open to environmental associations accredited through a decree (with a statutory aim entailing defence of victims of injuries or members’ economic interests) or in accordance with Article L141-1 of the Environmental Code. Ad hoc or human rights-focused associations would probably lack legal standing. These actions directly concern accredited consumer associations if legal standing has been explicitly recognised in other matters, such as ma environmental or personal data matters.

France: court decision on the legal standing of NGOs

In the greenwashing case against TotalEnergies, filed in March 2022 by Greenpeace France, Friends of the Earth France and Notre Affaire à Tous, supported by ClientEarth, a pre-trial judge decided in May 2023 to allow the legal action, confirming legal interest of French associations in the case (l’intérêt à agir). However, the court did not allow ClientEarth, which is not a France-based NGO, to be a formal intervener in the case.

Source: France, Greenpeace France, ‘Greenwashing de TotalEn ergies: première victoire procédurale des ONG’, 17 March 2022.

A similar approach is taken in Italy and the Netherlands, which allow consumer rights to be represented by organisations that are registered and fulfil certain conditions.

In Italy, Law No 31/2019 amending the Code of Civil Procedure expanded the subjects entitled to make use of the class action. Accordingly, non-profit organisations and associations with statutory objectives for protecting homogeneous rights, and also each member of the group, may bring action against the wrongdoer to seek (1) determination of liability and (2) a court order for compensation and restoration. However, only organisations and the associations fulfilling statutory requirements  and registered in a public list established at the Ministry of Justice can bring the action. To meet the requirements, an organisation must:

  • have been officially established and have been actively operating for at least 3 years, with a democratic structure and a sole statutory purpose of protecting consumers without making a profit;
  • keep an updated list of members and their fees;
  • have a certain number of members based on the national population and presence in multiple regions or provinces;
  • provide financial statements and maintain proper bookkeeping;
  • have legal representatives with no convictions in relations to the association’s activities and who do not own or manage any companies in the same sector.

The list of eligible organizations is constantly updated on the Ministry of Economic Development website. The acting entity will represent a group of consumers who have chosen to participate in a class action (opt in).

The legal framework in the Netherlands provides extensive requirements for consumer protection organisations seeking to bring collective action. In the case of CSOs, they must be a non-profit organisation [38] The Netherlands, Civil Code (Burgerlijk Wetboek), Article 3:305a, paragraph 3a.
. The representative organisation must be a foundation or an association with full legal powers and they must protect similar interests of other persons, insofar as they represent these interests pursuant to their articles of association and provided that these interests are sufficiently safeguarded [39] The Netherlands, Civil Code (Burgerlijk Wetboek), Article 3:305a, paragraph 1.
.

The relevant provisions in the Netherlands outline the requirements for consumer protection organisations, which must meet certain criteria required by law. The representative body of the consumer protection organisation must have the necessary experience and expertise to initiate legal proceedings and must account for its activities annually. Foreign organisations or public bodies may represent the interests of persons who regularly reside in the country where these organisations or public bodies are established.

In Poland, according to the Environmental Protection Act, if the threat or infringement concerns the environment as a common good, the action may be brought by the State Treasury, a local authority or an environmental organisation. Collective claims can be brought by a group representative who is either a member of a group or a district consumer ombudsman. Additionally, the claimant must be represented by a professional lawyer. Currently, an environmental organisation or other NGO cannot represent or bring a class action on behalf of the group (claimants). This should change following the implementation of the RAD.


2.3. Requirement of harm and possibility of actio popularis


Definitions

Actio popularis is a legal concept that originated in Roman law and refers to the right of an individual or a CSO to take legal action in defence of a public interest, even when they are not directly affected or victimised by the issue at hand. The plaintiff therefore acts in the public interest and represents the common good on its own behalf, without a specific complainant to support or represent, where the discrimination case affects a larger, (partially) unidentifiable group of persons.

It can be said that actio popularis is a type of collective redress.

The OSCE report Use of actio popularis in Cases of Discrimination defines it as a ‘mechanism for the protection of a particular group of people against systematic violations of rights which represents a public interest in a society that is defined as democratic’.

The use of actio popularis varies across European legal systems (see also Equality bodies working on cases without an identifiable victim: Actio popularis).

In several jurisdictions, it is possible for individuals to seek damages in the event of a breach of a law that is considered essential to safeguard fundamental rights. In order for a legal action for damages to be pursued in court, three conditions must be met: a breach of a legal obligation, the occurrence of harm, and the establishment of a causal link between the breach and the harm. From the perspective of environmental protection, these requirements present two main challenges: (1) the identification of a victim (who sustained harm) and (2) the diffuse, collective, cross-border and generalised nature of the interest of environmental protection. This section analyses the effectiveness of national safeguards of the general interest of consumers in the event of environmental damages (i.e. existence of actio popularis).

Italy allows for claims to be submitted in the general interest, with judicial action for compensation for environmental damage brought by the Minister of Ecological Transition (under the Environmental Code). An ‘extended’ class action mechanism was introduced by a recent reform of the Civil Procedure Code.

The Resolution of Mass Damage in Collective Actions Act was adopted in the Netherlands in 2020 and applies to collective actions for damages relating to ‘events’ that occurred on or after 15 November 2016. It does not distinguish between different types of actions. According to the explanatory memorandum to the Resolution of Mass Damage in Collective Actions Act, a collective action can be brought on behalf of anyone and can be based on any type of legal infringement that affects a class. Mass damages claims should be closely connected to the Dutch jurisdiction, although cross-border cases are still covered, if the defendant has its headquarters  in the Netherlands or most of the consumers are Dutch.

In Poland, a civil judicial claim can be brought by environmental organisations (social organisations whose statutory objective is the protection of the environment) only in case of a breach of Article 80 of the Environmental Protection Act, and they can request only injunctive relief, not damages. Consequently, organisations do not have to prove damage or show legal interest in the proceedings – this mechanism serves as an actio popularis. As confirmed by case-law [40] Poland, Appellate Court of Warsaw (Sąd Apelacyjny w Warszawie) VI ACa 621/09, 8 December 2009; Poland, Appellate Court of Warsaw (Sąd Apelacyjny w Warszawie) VI ACa 666/09, 10 January 2010.
, the producer, advertising agency and entity issuing the advertisement can be sued in this case.

The Portuguese legal system allows an actio popularis (ação popular) through a mechanism of collective action, when collective or diffuse interests are at stake, to respond to infringements on consumer rights and/or environmental rights. The Portuguese Constitution (Article 52(3)) recognises the right to popular action (ação popular) as a judicial mean available to citizens (individually considered or through associations), to be exercised before any court, for the defence of diffuse interests, without the necessity of invoking a personal and direct interest or demonstrating any connection with the material factuality in dispute. The conditions for filing a popular action are set out in other laws, such as the Right to Procedural Participation and Popular Action Act. Additionally, the right to popular action in environmental matters is established in Article 7 of the Bases of Environmental Policy Law.

Consumer rights and environmental rights are considered ‘diffuse interests’, being included in the categories of ‘environment’ and ‘consumption of goods and services’ as regulated by the Right to Procedural Participation and Popular Action Act.

In the case against Banco Comercial Português, the Supreme Court of Justice of Portugal ruled on the admissibility of the class action and protection of diffuse interests, related to bank guarantees. The ruling, as far as it regards the protection of collective interests and homogenous individual interests, is also applicable to consumer protection and environmental claims in general.

The important outcome of the judgment is that the popular legitimacy must be measured by:

  • the power of the plaintiff to represent the holders of the diffuse interest;
  • the interest in suing – the advantage that the plaintiff derives from the merits of the action.


2.4. Burden of proof in collective consumer and environmental claims


Definitions

The burden of proof refers to the requirement that the plaintiff shows the ‘weight of evidence’ that all the facts necessary to win a judgment are presented and are probably true. In some cases, the burden of proof may shift to the defendant if they raise a factual issue in defence during the proceeding.

The concept of burden of proof is an essential aspect of legal proceedings, typically requiring one party to adequately substantiate their claim. Usually, it is the party initiating the claim that bears the responsibility of demonstrating its validity and carries the burden of proof. The general rule for civil proceedings within the EU (and its Member States) is that a claimant must prove their case.

However, in certain circumstances, such as cases involving discrimination or product liability, this burden of proof can be shifted. In EU consumer law, the shift of burden of proof is an important aspect of consumer protection.

Legal regulation of burden of proof in consumer and environment related cases in the analysed countries varies. National laws either provide specific provisions on burden of proof in environmental law or administrative law or refer to general principles of consumer law in civil, administrative or environmental law. Some Member States regulate the burden of proof in various, complementary laws. (See Table 1).

Pursuant to Article 8(4) of the Civil Code in Belgium, the burden of proof lies with the plaintiff unless otherwise stated by the law. This is applicable in the situation guaranteed by the Code of Economic Law, when the application is given by the JEP, whose guidelines differ from those provided by the Belgian courts. The JEP requires that the advertiser demonstrates the accuracy and truthfulness of its claims, whereas in courts the burden of proof rests with the plaintiff unless otherwise stated by the law.

In Bulgaria, according to the Contract and Obligations Act, there are no rules envisaging a reversed burden of proof in environment-related cases.

Table 1 – Laws regulating the burden of proof in consumer and environment related cases, by Member State

Member State

Regulation of burden of proof in civil law / consumer law

Regulation of burden of proof in environmental law / administrative law

Varied legal regulations regulating the burden of proof

Shift of burden of proof

Austria

√

 

 

√

Belgium

√

 

 

√

Bulgaria

√

 

 

 

Denmark

 

√

 

 

France

√

 

 

 

Germany

 

 

√

√

Italy

 

√

 

 

Netherlands

 

√

 

√

Poland

 

√

 

√

Portugal

 

 

√

 

Source: FRA, 2023.

Specific provisions in the administrative law or environmental law relating to the burden of proof and the claimant’s obligation to prove the fault of the defendant exist in Denmark, Italy, the Netherlands and Poland.

Chapter 3 of the Danish Administration of Justice Act places the burden of proof on the claimant filing a collective action claim to show how persons falling under the collective action claim in question can be identified. In some cases, it is sufficient for the claimants to attach a list of names and addresses of the members of the group. Otherwise, the claimant can inform the group members in a specified local area through an advertisement in the newspaper within a time limit set for notification by the court.

Article 840-bis of the Code of Civil Procedure in Italy allows non-profit organisations and associations whose statutory objectives include the protection of the homogeneous rights or each member of the class to safeguard individual homogeneous rights through class action. It also refers to the requirement of providing evidence to justify the claim in order to require the payment of damages.

In the Netherlands, the Resolution of Mass Damage in Collective Actions Act provides for the possibility to claim damages, including environmental damages. It is possible for a representative entity to bring a ‘collective action’ on an ‘opt-out basis’ [41] The Netherlands, Civil Code (Burgerlijk Wetboek), Article 3:305a; the Netherlands, Code on Civil Procedure (Wetboek van Strafvordering), Article 1018f.
, which means that individuals who do not want to be represented have to declare that they do not want to be involved in the proceedings. The claimant always bears the burden of proof, notwithstanding the type of action, and the mass damage must be connected to Dutch jurisdiction.

In Poland, in proceedings before civil courts, the burden of proof that a specific market practice does not constitute an unfair practice lies with the company using the practice. Claims for damages may be limited to a request to establish the liability, followed by separate individual monetary claims by each of the claimants.

In case of tort claims under general rule of Article 415 of the Civil Code, in which claimants’ damage is connected to the environmental degradation, claimants must prove that the damage is a normal consequence of the act or the omission in question [42] Poland, Article 361(1) of the Civil Code.
, and that it is the defendant’s fault. This claim can be brought against any natural or legal person, including one exercising public authority [43] Poland, Article 417 of the Civil Code.
. Under Article 435 of the Civil Code, operators of enterprises or plants powered by natural forces are liable for any damage unless it was caused by the injured party or an unavoidable event.

Article 323(1) of the Environmental Protection Act allows individuals to file a tort claim for environmental damage caused by unlawful impacts. These claims are solely of a reparative and preventive nature (a person seeking pecuniary damages must resort to the general rules of the Civil Code). The burden of proof lies with the claimant. However, in an effort to rectify the inequalities in access to essential information, the law stipulates that individuals seeking compensation for environmental harm may request the court to compel the responsible party to disclose all pertinent details essential for assessing the extent of their liability.

More specific legal regulation regarding the burden of proof exists in Germany and Portugal.

In Germany, consumer claims are regulated in civil and administrative law. Civil law regulation on consolidated action enables certain consumer organisations to represent consumers’ interests and puts the burden of proof on the claimant.

In Portugal, the Consumer Protection Law mandates proof in consumer claims related to the environment. However, because the Portuguese Constitution guarantees actio popularis for diffuse interests, there is no burden of proof for the claim and no need to invoke a personal and direct interest or demonstrate any causality in the dispute. The Right to Procedural Participation and Popular Action Act and Bases of Environmental Policy Law also support popular action relating to environmental rights and establish relevant conditions, including with respect to burden of proof.